You may have read about the fancy prenuptial agreements signed by famous Hollywood couples or read about the fallout from the divorce when a couple has no agreement in hand. But did you know about postnuptial agreement? What is it and is it necessary?
What is a postnuptial agreement in Singapore?
A postnuptial agreement is a legal contract signed after a couple is married but before a divorce. Some common issues covered include:
- Division of couple’s matrimonial assets
- Maintenance for children
- Payment of couple’s debts
- Custody, care and control and access of children
Why do you sign a postnuptial agreement?
According to a Bloomberg article for America, common reasons could include running out of time before the wedding to sign the prenuptial agreement or adultery but the couple wants to try and work on the marriage.
In general, common reasons for entering into a postnuptial agreement include:
- Change in circumstances since the parties were married, such as inheritance, change in wealth
- Did not sign a prenuptial agreement and wanted one post marriage to cover bases
- Financial planning
When do you sign a postnuptial agreement?
It must be said that signing a postnuptial agreement is a very sensitive and serious decision that is undertaken by any married couple. A common fear is often ‘if everything is going on fine in the marriage, why are we talking about its end?’
In Singapore, there are three ways that a marital relationship ends:
- Through death of a spouse;
- Through the annulment of the marriage; or
- Through divorce
The fear is that having a postnuptial agreement would affect the current relationship. We understand this fear and fully respect the values of those who believe that the only way to the end of a marital relationship should only be through death.
However, in the event the couple chooses to sign a postnuptial agreement, the success of reaching an agreement is undergirded by these fundamental principles:
- The spouses should have mutual respect for the other – That both voluntarily, without any duress, coercing or undue influence, enters the postnuptial agreement because they mutually consent to do so. Parties should conduct themselves in a dignified manner. In the absence of such mutual respect, conflict resolution processes (e.g. mediation and/or psychotherapy/counselling) ought to be engaged before the discussion of a postnuptial agreement.
- That there should be full disclosure and transparency, integrity and honesty, between spouses in the process of drafting the postnuptial agreement. This is such that neither of the spouses is under any false impression or mistake when they sign the postnuptial agreement.
Postnuptial agreement vs Deed of Separation
Technically, a Deed of Separation falls under the broad category of a ‘postnuptial agreement’. The main difference is that unlike a Deed of Separation, when a postnuptial agreement is drafted, the relationship between the spouses may not have deteriorated to the extent that divorce is imminently contemplated.A Deed of Separation is largely drafted in view of commencing divorce proceedings at a later date. Some of the reasons why a Deed of Separation is entered is because:
A Deed of Separation is largely drafted in view of commencing divorce proceedings at a later date. Some of the reasons why a Deed of Separation is entered is because:
- the couple had not been married for the mandatory 3-year period;
- that the exceptions to the 3-year time bar are not fulfilled; or
- the marriage cannot be annulled.
Other couples might enter into a Deed of Separation for personal reasons like they wish to have a cooling off period before they divorce or that there are certain other property restrictions that they mutually would like to fulfill before a divorce.
Like a postnuptial agreement, the Deed of Separation could include discussion on issues like the custody and care of the children, the access of the children, maintenance, division of matrimonial property etc.
However, some couples who wish to have the certainty of a Court Order might wish to opt for a ‘judicial separation’ instead of a Deed of Separation.
Is the postnuptial agreement binding in Singapore?
The contents of the agreement will also need to be balanced against parties’ responsibilities under the Women’s Charter, particularly in relations to the “just and equitable” division of matrimonial assets and the maintenance of children.
It is important to have your post-nuptial agreement drawn up by experienced lawyers who can ensure that all conditions meet the requirements of Singapore law and also, to include clauses that allow for revision of terms periodically to ensure that the agreements stay relevant and up-to-date.
In 2014, The Court of Appeal has ruled that a postnuptial agreement formed under the proper circumstances can carry “significant weight” in determining how matrimonial property is to be divided. It overturned a High Court ruling, where the judge had decided to split the assets in question equally, having determined that the Settlement Agreement in question was only one of the factors the court needed to take into account in deciding what division was “just and equitable”. You can read about it here.
Can postnuptial agreements be used to expedite divorce proceedings
Postnuptial agreements can be enforced to expedite divorce proceedings in Singapore. Married couples can submit their postnuptial agreements for consideration when applying for divorce in the Singapore court.
From the court’s perspective, the terms of the postnuptial agreement can be used as a reference point for the couple’s intentions in dividing their matrimonial assets. For the couple, preparing an agreement in advance can not only reduce the time needed for negotiations but also minimise the possibility of disagreement and contention.
When Approaching Your Spouse to Draft an Agreement
As mentioned above, the broaching of the topic to draft a postnuptial agreement is a very sensitive and serious topic and one that must be handled with much sensitivity and respect. The spouse whom is asked to consider doing a postnuptial agreement may feel upset, disgusted or horrified. There is also the fear that broaching the topic of a postnuptial agreement would be the start of the breakdown of the relationship in the marriage.
Depending on you and your spouse’s personal belief and values, perhaps being made aware of how a postnuptial agreement or a Deed of Separation would hopefully help to lessen marital conflict between parties; where such conflict would definitely affect your children could be the best angle to broach this topic. If there is much awkwardness or discomfort to discuss in length about drafting an agreement, perhaps it might be better to take this issue to a mediator, a neutral third party, to talk about this to your spouse.
When Engaging a Lawyer to Draft a Postnuptial Agreement or Deed of Separation:
- The cost of a postnuptial agreement or deed of separation would depend on the complexity of the document as well as the lawyer selected for the drafting. If the couple must have several negotiation sessions to settle the terms of the Postnuptial or Deed of Separation, this would also impact the legal cost.
- A Postnuptial Agreement or a Deed of Separation can be drafted by a single lawyer provided that the couple agree largely on the terms of the document. However, should each couple individually wish to know their legal position on the various proposals arising, each couple should seek their own lawyer to independently advise them. In such circumstances, the lawyer who is engaged to draft the Deed of Separation takes on more of the role of the mediator.
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You may be interested in these articles:
- Prenuptial Agreements in Singapore
- Eyes wide open – How useful and enforceable are prenuptial agreements in Singapore?
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.